Issue:  Vol. 48 / No. 7 / 15 February 2018

Critical gay issues await Supreme Court justices


Masterpiece Cake Shop owner Jack Phillips refused to sell a wedding cake to a same-sex couple. Photo: Courtesy ADFLegal
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The new United States Supreme Court session, which begins October 2, could be a critical one for LGBT people. And that's saying a lot, given some of the major victories LGBT people have won at the high court in the past five years. But the issues cued up this time could have even greater impact – good or bad – and they are largely concerned with religion.

The court has already agreed to hear an appeal that seeks to use the First Amendment as a form of immunity against state laws prohibiting discrimination based on sexual orientation in public accommodations.

Lambda Legal Defense and Education Fund has just asked the court to hear an appeal that argues that the federal Civil Rights Act already implicitly prohibits discrimination based on sexual orientation in employment.

Lambda Legal and other LGBT legal organizations have submitted briefs in opposition to a section of President Donald Trump's executive order concerning immigration bans.

And there are several appeals pending that indirectly concern various LGBT-related issues.


The worrisome cake walk

There's no date set yet for when the Supreme Court will hear arguments in Masterpiece Cake v. Colorado, but LGBT legal activists will be intensely involved in this American Civil Liberties Union case. Its implications – both symbolically and legally – could be huge, affecting whether a business can deny services or public accommodations to LGBT people by simply claiming to have either a religious belief or a personal opinion that is hostile to them.

The case involves a baker, Jack Phillips, who refused to sell a wedding cake to a same-sex couple. Phillips has offered at least three reasons why he did so. He's claimed a religious belief opposed to marriage for same-sex couples. He's claimed a personal viewpoint that is hostile to marriage for same-sex couples. And he's claimed that a Colorado law prohibiting discrimination based on sexual orientation impinges on his "artistic expression" in creating his wedding cakes.

His legal team from Alliance Defending Freedom, which is designated a hate group by the Southern Poverty Law Center, said in its brief to the court that Phillips is a man of "deep religious faith" who can "only create cakes that are consistent with the tenets of his faith."

A visit to Phillips' website indicates these designs involve mostly flowers, ribbons, polka dots, and curlicues. Only two of the two-dozen designs incorporate a male-female image. And Phillips refused to sell the gay couple a wedding cake even before they had a chance to ask him to create a design just for them.

His attorneys said the issue is "whether Phillips may decline requests for wedding cakes that celebrate marriages in conflict with his religious beliefs."

Colorado Attorney General Cynthia Coffman said that, because Phillips "categorically refused" to accept the cake order "before there was any discussion about what the cake would look like," there was no imposition on his religious views. Phillips and his shop could have simply sold the gay couple "a product that they would sell to heterosexual couples."

Phillips' argument failed before the Colorado Civil Rights Commission, the state court of appeals, and the Colorado Supreme Court. But at least four justices of the U.S. Supreme Court have agreed it should hear his appeal. This is particularly worrisome to LGBT legal activists because, just three years ago, the Supreme Court refused to hear a very similar case out of New Mexico. In that case, a wedding photographer refused service to a lesbian couple.

What's different with the Masterpiece case?

It's probably not the newly added justice, Neil Gorsuch. Gorsuch replaced the late Justice Antonin Scalia in April and the court voted to take the Masterpiece appeal on June 22. But, Scalia had the worst voting record on LGBT issues of any justice, so itŐs a little hard to believe that Gorsuch, who replaced him, was the missing fourth vote.

More likely, it was Chief Justice John Roberts or even Justice Anthony Kennedy. And while Kennedy wrote the opinion (in Obergefell v. Hodges in 2015) that struck down bans on marriage for same-sex couples, he also stated that marriage gives such couples "symbolic recognition" that "nourishes the union."

"Many who deem same-sex marriage to be wrong," wrote Kennedy, "reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here."

It may also be a change in the argument. In the New Mexico case, Elane Photography v. Willock, at the Supreme Court level, Alliance Defending Freedom argued only free speech as a reason to allow some businesses to ignore state laws prohibiting sexual orientation discrimination in public accommodations. Now, the Alliance, which is defending the baker, is arguing free exercise of religion and freedom of expression.

One other big difference in 2017 versus 2014: Trump. Under President Barack Obama, the administration submitted a brief in support of equal treatment of same-sex couples. Under Trump, the administration has submitted a brief defending the baker who claims a non-discrimination law imposes on his First Amendment right to freedom of speech and expression.


The Texas two-step

The city of Houston appealed a case to the Supreme Court September 15, seeking a declaration that the high court's decision in Obergefell means the city must pay equal benefits to city employees in same-sex marriages as it does to employees in heterosexual marriages.

In the case, Turner v. Pidgeon, the city of Houston challenges a June 30 decision of the Texas Supreme Court that held that a trial court should consider whether Obergefell requires the city to pay equal benefits. The state court decision claims the Supreme Court addressed just the right to a marriage license and failed to address such specifics as equal benefits.

Following Obergefell, two taxpayers, including Jack Pidgeon, filed the original lawsuit to oppose the decision of lesbian then-Mayor Annise Parker to see that city employees with same-sex spouses received the same benefits as city employees with heterosexual partners. The Texas Supreme Court ruled in their favor, saying that the "reach and ramifications" of the U.S. Supreme CourtŐs decision in Obergefell require additional rulings.

The city's current mayor, Sylvester Turner, filed a petition with the Supreme Court asking it to review the case.


Trump continues opposition

The Trump administration has also taken sides against the interests of LGBT people in another major case: one deciding whether Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation.

Lambda Legal petitioned the Supreme Court September 7 to review an 11th U.S. Circuit Court of Appeals ruling in Evans v. Georgia Regional. That ruling held that Title VII does not prohibit discrimination based on sexual orientation. On Tuesday, September 26, the 2nd Circuit will hear arguments in a similar case in New York (Zarda v. Altitude Express). In that case, U.S. Attorney General Jeff Sessions has submitted a brief arguing (unlike the Equal Employment Opportunity Commission) that the Department of Justice does not believe Title VII prohibits sexual orientation discrimination.

Four justices will have to agree to hear Lambda Legal's appeal in Evans and, while the Trump administration's position might discourage four votes, there is other impetus. In April the 7th Circuit, which covers the states of Illinois, Indiana, and Wisconsin, ruled that Title VII does cover sexual orientation. And a conflict between the circuits is often a reason the Supreme Court agrees to hear an issue.


LGBT groups push back, too

One of the term's highest profile cases will, no doubt, be one that asks whether an aspect of Trump's controversial immigration executive order violates the First Amendment's admonition to "make no law respecting the establishment of religion."

The executive order sought to ban foreign nationals from six countries in the Middle East from entering the U.S. for 90 days to "prevent infiltration by foreign terrorists." It also limits to 50,000 the number of refugees who can enter the U.S. during the current fiscal year. Opponents say the executive order unfairly targets Muslims, in violation of the First Amendment establishment clause.

The National Center for Lesbian Rights joined a brief from several civil rights organizations, including the NAACP. The brief notes that NCLR's immigration project has provided free legal assistance to "thousands" of LGBT immigrants in the U.S. The brief argues that Trump's proposed immigration executive order "improperly promotes social categorization and stereotyping that endangers the lives and well-being of individuals of the Muslim faith."

Lambda Legal signed onto a brief, too; one led by the Southern Poverty Law Center, People for the American Way, and others. Lambda Legal has also represented people seeking asylum. Among other things, the brief argues that the executive order "foments the social divisiveness and violence that the establishment clause was meant to forestall."

Quoting from Obergefell, the brief states, "Governmental policies that disfavor a minority group impermissibly 'put the imprimatur of the state itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.'"


Other potential cases

There are other appeals pending before the court that could have potential implications for LGBT people. The court has not yet indicated whether it will review them, but they include:

Reyes v. Sessions (17-241): This case, from the 9th Circuit, concerns how to interpret the words "particular social group" under the Immigration and Nationality Act. Under the INA, a person can be eligible for asylum if they might face persecution in their country of origin because they belong to a "particular social group." The person who brought this challenge is not LGBT but rather a member of a violent street gang in El Salvador. He's challenging the narrow interpretation of "particular social group" used by the Bureau of Immigration Appeals. The BIA interprets it to require that everyone in this "particular social group" have an "immutable characteristic" in common.

A Woman's Friend v. Becerra (16-1146): The court is set to discuss in its private conference September 25 whether to take this case. It tackles several questions related to a California law that requires clinics that provide pregnancy-related services, including church-based nonprofits, post information about where patients can obtain help with abortion and other pregnancy-related services. A Woman's Friend clinics consider "abortion is evil and a sin" and do not receive any governmental funding. The clinics argue that laws imposing such "content-based" requirements should be held to the highest level of scrutiny by the courts and violate the First Amendment guarantee of free exercise of religion. Also seeking appeal on the state law is Livingwell Medical Clinic Inc. v. Becerra (16-1153).

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